NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSANNA VARDANYAN, No. 15-71022
Petitioner, Agency No. A075-679-422
v.
MEMORANDUM *
JEFF B. SESSIONS, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Susanna Vardanyan, a native and citizen of Armenia, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the denial of a motion to reopen. Avagyan v. Holder, 646
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Vardanyan’s
request for oral argument is denied.
F.3d 672, 678 (9th Cir. 2011). We deny in part and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying Vardanyan’s motion to
reopen as untimely, where it was filed more than 12 years after her final order of
removal, see 8 C.F.R. § 1003.2(c)(2), and Vardanyan failed to establish the due
diligence required for equitable tolling of the filing deadline, see Avagyan, 646
F.3d at 679 (equitable tolling is available to an alien who is prevented from timely
filing a motion to reopen due to deception, fraud, or error, as long as petitioner
exercises due diligence in discovering such circumstances). Vardanyan’s
contention that the BIA ignored evidence is not supported by the record. See
Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).
Our jurisdiction to review the BIA’s decision not to reopen proceedings sua
sponte is limited to review for legal or constitutional error. Mejia-Hernandez v.
Holder, 633 F.3d 818, 823-24 (9th Cir. 2011); Bonilla v. Lynch, 840 F.3d 575, 588
(9th Cir. 2016). Vardanyan’s contention that the BIA did not sufficiently articulate
its reasons for declining to reopen sua sponte is not supported by the record. See
Najmabadi, 597 F.3d at 990. We may not overrule this court’s precedent
concerning jurisdiction to review the BIA’s sua sponte determinations. See
2 15-71022
Avagyan, 646 F.3d at 677 (“A three-judge panel cannot reconsider or overrule
circuit precedent unless ‘an intervening Supreme Court decision undermines an
existing precedent of the Ninth Circuit, and both cases are closely on point.’”
(citation omitted)).
Because the due diligence determination is dispositive, we do not reach
Vardanyan’s contentions regarding the merits of her ineffective assistance of
counsel claim.
In light of our decision, we need not reach Vardanyan’s request for fees and
costs pursuant to the Equal Access to Justice Act.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 15-71022